EPA Uses Hybrid Approach For Informal Resolution Of Rights Complaints

This article is reprinted from InsideEPA. Read full article by Dawn Reeves.

EPA is seeking to move forward with a new “hybrid” approach to reaching informal resolution of Civil Rights Act complaints by allowing community members filing complaints to participate in negotiations with funding recipients they allege have violated the law.

The first-time approach, which EPA is proposing in response to a complaint over potential state approval of a Brooklyn, NY, natural gas project expansion, appears to be aimed at giving community members a seat at the table in response to their objections to being shut out of the process when the original project was approved. When the state found a planned expansion would have no environmental impact, they petitioned EPA to investigate under Title VI of the rights law.

EPA declined to respond to questions on the issue because the investigation is ongoing.

The Biden administration is seeking to elevate environmental justice (EJ), equity and climate change, and EPA’s External Civil Rights Compliance Office (ECRCO) has promised to beef up its Title VI enforcement.

In the face of such pledges, the agency is weighing a growing number of petitions from EJ advocates raising concerns about state agency practices.

But if EPA were to allow petitioners to play a role in resolutions of their complaints, it would mark a shift from past practices.

During the Obama administration, ECRCO issued a rare draft finding of discrimination in a complaint known as Angelita C, which alleged California officials approved an unenforceable pesticide control plan that critics said disproportionately exposed Hispanic schoolchildren to harmful pesticides.

But through an informal resolution, the agencies resolved the matter and dismissed the petition. It was only after it was dismissed did outside groups learn about the draft finding, which prompted outrage from EJ groups and ultimately failed litigation.

EPA is now considering the hybrid approach with groups that filed a Title VI complaint with ECRCO and the Pipeline & Hazardous Materials Safety Administration (PHMSA) against the New York Department of Environmental Conservation (DEC) and Department of Public Service (DPS) over those agencies’ handling of a plan by National Grid to expand a pipeline and liquefied natural gas (LNG) platform in poor and minority areas in Brooklyn.

The groups say EPA has broached the hybrid approach with them and has indicated it has done so in at least one other newer complaint it has accepted for investigation.

The Brooklyn complaint was filed last August after DEC issued a finding that the pipeline — an expansion to transport Pennsylvania natural gas for export — would have no environmental impacts, a finding it made after it failed to consider the pipeline to be an integral part of the LNG export terminal, which the groups say violates state law.

The groups have been pushing EPA “to make clear that they cannot just be coming up with new rules on paper but bringing DEC into compliance by requiring them to review the environmental impact on communities of color in the pathway of that pipeline,” Anjana Malhotra, a senior staff attorney with the National Center for Law and Economic Justice, told Inside EPA earlier this year.

She added that the company was presented with alternatives to build through white communities “and they picked the path of least resistance.” It is “shocking” that DEC turned its back, she says.

‘Active Participants’

The petitioners — Brownsville Green Justice, the Ocean Hill-Brownsville Coalition of Young Professionals, Mi Casa Resiste and Indigenous Kinship Collective — express their support for such an approach in a May 3 letter to ECRCO chief Lilian Dorka and PHMSA civil rights chief Rosanne Goodwill.

They wrote the letter as a follow-up to a March 15 ECRCO meeting and an April 19 meeting with EPA and the Department of Transportation’s complaint investigations team “to emphasize and outline our desire to be active participants in both your agencies’ previously described newly conceived ‘hybrid’ informal resolution process and the investigation of our complaints concerning the North Brooklyn Pipeline.”

The groups represent residents in Brooklyn communities including Williamsburg and Bushwick, where phases one through four of the operating pipeline runs. “We were the first to be impacted by this project and the last to find out about it. We were denied our rightful opportunity not only to be heard but to effectively object to the installation of unnecessary and harmful fracked gas infrastructure in our already over-polluted neighborhoods. Then, we were charged for it.”

The letter adds that while the groups appreciate meeting with the federal agencies, “we would like to . . . be part of the ongoing conversations you hare having with [DEC and DPS] throughout the course of this investigation.”

They also offer their perspective on how a hybrid informal resolution process should work, including that while they understand they would not be parties to any agreement, they should have a strong role in the process, and “do not want to solely be used as sources of information.”

The groups say they and their lawyers should be invited to every meeting and be cc’d on each communication in the process.

They also state they expect the end result to be “shutting down the pipeline where gas continues to flow” in the first four phases, and requiring DEC to undertake a full analysis under the state’s environmental policy and climate laws of both the LNG platform and proposed phase 5 of the pipeline together.

“No decision can be made on the Air Permit without this analysis because they are one ‘whole action’ under state law, and failure to do so violates Title VI,” they write.

“We believe that delayed intervention by the EPA, DEC and/or DPS further infringes upon our rights especially because construction of the pipeline has stopped in phase 2, where the surrounding community is 74 [percent] White and the median household income is $96K, while the remaining pipeline route continues to be exposed to the dangers of flowing gas and the surrounding community is on average 44 [percent] black and 39 [percent] Latinx. The community would like to be compensated for this delay in its protection.”

They also request information about what metrics EPA is using, clarification about what information can be disclosed in the investigation and how it can be disseminated to the public, the opportunity for feedback on outcomes, a commitment to a public forum before any decision is made, and more.

Potential Option

Britney Wilson, director of the Civil Rights & Disability Justice Clinic at New York Law School, says the hybrid process is “a potential option that the EPA presented to us. . . . EPA presented the possibility of an informal resolution process plus hybrid that would allow our clients specifically to be part of meetings with DEC and DPS. . . . We don’t know what will happen. As far as we know, they have posed the possibility to DEC and DPS and are waiting for a response.”

Wilson says EPA mentioned at least one other complaint where it is pursuing the hybrid process but did not provide specifics. “It is definitely new and something they are trying out.”

She adds that the groups last met with EPA on April 19 and are hoping to hear back from EPA soon.

Wilson also notes that DEC recently decided “yet again to defer a decision on the air permit,” which is the subject of their Title VI complaint. This time, DEC said it would suspend consideration of the permit until after DPS issues a final decision on the pipeline’s need. That process will require an outside monitor to scrutinize the project and then a vote.

This is “all good news” because DEC is “finally recognizing that National Grid must prove the project complies with” the state’s new climate law.

However, DEC has still not acknowledged that the pipeline and the LNG project are one, even though “the pipeline is what necessitates the expansion of the LNG platform because the pipeline will bring more gas.” The project was segmented and the groups argue that together the pipeline and the LNG platform “violate the New York Climate Leadership & Community Protection Act [CLCPA], which aims to reduce emissions of greenhouse gases. . . . and a fracked gas pipeline does the opposite,” Wilson says.

The CLCPA also requires the consideration of disadvantaged communities when considering potential new projects, and all of the communities through which the first four phases of the pipeline runs are disadvantaged, she adds.

The groups pursing the Title VI complaint also shared a second letter from groups supporting their effort sent May 4 to EPA’s Dorka and other officials and PHMSA’s Goodwill in support of the legal arguments underlying the complaints. They include NY Renews Coalition and New York Lawyers for the Public Interest.

Fabian Rogers, one of the community members pursuing the Title VI complaint, says the pipeline project and proposed expansion have “been a mess” and that the CLCPA should have prevented exactly this type of project, what he calls “an environmental monster,” from being approved.

He is also skeptical of what EPA can do. “I would like to think they would take the community voice seriously, but I almost highly doubt it. . . . I just have a certain level of unease talking to them. . . . Sure, they opened the door for conversations, but are they really listening? If EPA can’t agree with the community that this project should not have happened in the first place, then what is the point?” he asks.